Rivera v. Woodford

Filing 24

ORDER ISSUING CERTIFICATE OF APPEALABILITY re 23 Notice of Appeal filed by Jose Luis Rivera signed by Judge Frank C. Damrell, Jr. on 01/11/10. (Benson, A.)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. JEANNE S. WOODFORD, Respondent. / Petitioner, a state prisoner proceeding through counsel, has timely filed a notice of appeal of this court's December 9, 2009 denial of his application for a writ of habeas corpus. Before petitioner can appeal this decision, a certificate of appealability must issue. 28 U.S.C. 2253(c); Fed. R. App. P. 22(b). A certificate of appealability may issue under 28 U.S.C. 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2). The certificate of appealability must "indicate which specific issue or issues satisfy" the requirement. 28 U.S.C. 2253(c)(3). A certificate of appealability should be granted for any issue that petitioner can demonstrate is "`debatable among jurists of reason,'" could be resolved differently by a different 1 ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA JOSE LUIS RIVERA, Petitioner, No. 2:05-cv-2537 FCD JFM (HC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 court, or is "`adequate to deserve encouragement to proceed further.'" Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).1 Petitioner has made a substantial showing of the denial of a constitutional right in the following issue presented in the instant petition: ineffective assistance of counsel. Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the present action. DATED: January 11, 2010. _______________________________________ FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE Except for the requirement that appealable issues be specifically identified, the standard for issuance of a certificate of appealability is the same as the standard that applied to issuance of a certificate of probable cause. Jennings, at 1010. 2 1

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